Reed v. Southern Illinois University

          MEMORANDUM & ORDER

          GILBERT C. SISON, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Bailey Reed, who was a student at Southern Illinois University at Edwardsville in 2017, alleges that Defendants Southern Illinois University d/b/a Southern Illinois University at Edwardsville (“SIUE”), Randall Pembrook, Ashley Cox, Kara Shustrin and Chad Martinez engaged in a course of gender discrimination and violated her constitutional rights after Reed was sexually assaulted by another student. Before the Court is a motion to dismiss filed by Defendant Ashley Cox (Doc. 9). For the reasons delineated below, the Court denies Defendant Cox’s motion.

         Factual Allegations

         In her complaint, Plaintiff Bailey Reed alleges that she was a student at Southern Illinois University at Edwardsville in October 2017, living in campus housing. Throughout the month of October, she and another SIUE student exchanged friendly and “flirty” messages. She liked the other student. At one point, the other student sent Reed a text and asked, “Do you find me trustworthy?” She replied, “From what I know, Absolutely.” He then asked, “Do you think I’m respectful?” Reed replied, “From what I know, I think you’re a great guy.” About a day or so after the exchange, the student asked Reed via online communication what she was doing, and she replied that she was getting ready to meet a friend. The student responded that he was coming over to her on-campus apartment. Reed alleges that she did not invite him over, but she did not protest because she liked him.

         Reed signed the student into her building, allowing him to come to her apartment. Once there, he grabbed her by the hand and pulled her onto his lap. Reed was uncomfortable and tried to pull herself away. The student began kissing her, and she kissed him back. She quickly told him, however, that she did not want to have sex. He ignored her and picked her up and threw her onto her bed. He proceeded to sexually assault her despite Reed repeatedly telling him “no” and crying. The student repeatedly told her, “It’s fine.” Later that night, after discussing it with a friend and with her mother, Reed went to Anderson Hospital to report that she had been raped.

         At the hospital, a woman entered Reed’s room and told her that she worked for a non-profit rape crisis center named Call for Help and that another Call for Help employee, Defendant Ashley Cox, who worked with all SIUE students who were sexually assaulted, would be in touch. Reed was scared and traumatized when she received the call from Cox. Cox allegedly told Reed that she worked for Call for Help and that their conversations were confidential. Cox failed to reveal that she had become an employee of SIUE approximately four months earlier. Cox told Reed that she did not have to report the rape, but Reed decided she wanted to and went to the SIUE police department. Cox met her there.

         At the police department, Cox and Reed spoke privately, and Cox asked Reed how she wanted to proceed. Reed said that she wanted to report the rape and that she wanted to move from her on-campus apartment. Cox then briefly described the Title IX process, allegedly emphasizing how difficult it, and the criminal process, would be. She asked if Reed was sure she wanted to report the assault, and Reed confirmed that she wanted to report it to both the Title IX Office and to the police.

         After the conversation, Reed’s mother, in front of Reed, told Cox that she was concerned about Reed remaining in the apartment where she had been assaulted, and Cox replied sternly that there was nothing that could be done. Cox then told Reed that she would inform SIUE’s Title IX office that Reed wanted to report a sexual assault and that someone from the office would contact her within a few days. When no one from the office called, Reed’s mother tried to reach out to Cox, but Cox did not return her calls.

         Reed’s mother reached out to the Title IX office directly, but she did not receive a response until she left a message threatening to contact a Dean. At that point, she was told that the entire office was out and that it would be a week or more before someone was available to meet with the family. Reed’s mother demanded quicker action, and a meeting eventually was scheduled.

         Reed and her family first met with Defendant Kara Shustrin, an Associate Dean, who said that the Title IX Office was aware of the assault but that Cox told them that Reed did not want to make a report. Reed told her that she did want to make a report, and Shustrin and Defendant Chad Martinez, the Title IX Coordinator, offered Cox as a support contact and liaison for the Title IX process. Reed declined the offer of Cox’s assistance. Reed alleges that she and her counsel did not learn of Cox’s status as an SIUE employee until September 2018 through online research, and she alleges that Cox discouraged her from reporting her sexual assault and failed to start the Title IX process, despite Reed’s stated desire to proceed.

         The Title IX Office proceeded to investigate Reed’s complaint. Nearly 100 days after she reported her sexual assault, Defendant Martinez ruled in favor of her attacker. The decision offered five findings in support: (1) Reed liked and wanted to spend time with her attacker before the assault; (2) Reed enjoyed attention from him and had been “flirty” before the assault; (3) Reed didn’t act the way Martinez believed a rape victim should act following a rape; (4) Reed had her timeline of sexual acts and communications confused, undermining her credibility; and (5) Martinez found the sexual positions of the assault as described by Reed difficult to “envision.” Reed appealed the decision to the Sexual Harassment Panel, which found in her favor. Defendant Randall Pembrook, the Chancellor, however, overturned the panel’s decision in April 2018, and the Board of Trustee’s refused Reed’s appeal on procedural grounds in September 2018.

         In Count IV, Reed alleges that Cox, along with all Defendants, violated her Fourteenth Amendment right as a public university student to personal security, bodily integrity and equal protection under the law. They did so by failing to investigate her attacker’s misconduct, by failing to discipline him, by failing to adequately train and supervise Pembrook, Cox, Shustrin and Martinez, and by manifesting deliberate indifference to the sexual assault and ongoing harassment of Reed. Reed alleges that Cox was both a policymaker and a state actor for purposes of implementing SIUE’s unconstitutional policies and customs.

         Legal Standard

         A complaint must include enough factual content to give the opposing party notice of what the claim is and the grounds upon which it rests. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 698 (2009). To satisfy the notice-pleading standard of Rule 8, a complaint must provide a “short and plain statement of the claim showing that the pleader is entitled to relief” in a manner that provides the defendant with “fair notice” of the claim and its basis. Erickson v. Pardus, 551 U.S. 89, 93 (2007)(citing Twombly, 550 U.S. at 555 and quoting Fed. R. Civ. Proc. 8(a)(2)). In ruling on a motion to dismiss for failure to state a claim, a court must “examine whether the allegations in the complaint state a ‘plausible’ claim for relief.” Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011)(citing Iqbal, 556 U.S. ...